June 2012

Post image for Attorney Peter Glaser’s “Morning After” Reflections on the D.C. Circuit Court GHG Decision

Despite the disappointing decision yesterday, it would be well to remember that the real damage was done in the Supreme Court’s 5-4 Massachusetts decision, where EPA was found to have authority to regulate GHGs under the CAA so long as it determined that GHGs endanger the public health and welfare. 

. . .the Massachusetts decision was a real travesty.  It is impossible to review the history of the public debate on GHG regulation in this country beginning in the 1980s, when potential climate change first came to prominence, and conclude that authority to regulate GHGs was always available, hiding in plain sight in the CAA as first enacted in 1970. The Supreme Court said in the 2001 American Trucking Associations decision, in language that is often cited, that Congress does not “hide elephants in mouseholes.”  Evidently, in the case of EPA GHG regulation, Congress did.

In the end, the most rational thing for the country to do on GHGs is for Congress to enact legislation that gets EPA out of the GHG regulatory business entirely.  — Peter Glaser

In Massachustts v. EPA, the 5-4 majority argued: (1) The Clean Air Act (CAA) defines “air pollutant” as any airborne substance whatsoever; (2) the EPA has a mandatory duty to regulate air pollutants emitted by automobiles if the associated “air pollution” “may reasonably be anticipated to endanger public health and welfare”; and (3) “welfare” effects include changes in “weather and climate.” Given these premises, the Court basically left the EPA one way to avoid regulating GHGs: Cancel its membership in the self-anointed “scientific consensus” — the climate alarm movement — that the agency had spent years promoting and leading. No chance of that happening.

For reasons discussed here and here, the lynchpin of the Massachusetts Court’s argument, premise (1), was a misreading of the CAA definition of “air pollutant.” At a minimum, respondent EPA’s opinion that carbon dioxide (CO2) is not an air pollutant was a “permissible construction” of the statute and thus should have been accorded deference under the Court’s Chevron Step 2 test. If the GHG regime EPA is building were proposed in legislation and put to a vote, Congress would reject it. Congress would surely have rejected the EPA’s GHG agenda in 1970, when it enacted the CAA and defined “air pollutant.” The terms “greenhouse gas” and “greenhouse effect” do not even occur in the CAA. Only as amended in 1990 does the CAA even obliquely address the issue of global climate change. Congress considered and rejected regulatory climate policies in the debates on the 1990 CAA Amendments. The very provisions tacitly addressing climate change — CAA Secs. 103(g) and 602(e) — admonish the EPA not to adopt “pollution control requirements” for CO2, and not to regulate substances based on their “global warming potential.”

With the case law on GHG regulation hopelessly botched by the Supreme Court, only Congress can rein in the EPA — and only if there is a change of management in the White House and the Senate in November.

Peter Glaser’s full commentary on the D.C. Circuit Court decision follows. [click to continue…]

Pickens Payoff Plan, RIP

by Brian McGraw on June 27, 2012

in Blog

Post image for Pickens Payoff Plan, RIP

Representative John Sullivan (R-OK) lost a Republican primary last night to Jim Bridenstine, who is likely to win Sullivan’s seat in November. Sullivan was the main sponsor of the T. Boone Pickens NAT-GAS Act, which would have funneled money into subsidies for building out infrastructure for natural gas vehicles, specifically fueling stations throughout the country and providing tax credits for large truck fleets that converted to natural gas. While the past few years have seen significant anti-incumbent sentiments, one notable difference between Sullivan and Bridenstine was their stance on subsidizing natural gas:

On only one issue, energy policy, did Sullivan and Bridenstine substantially disagree. Sullivan touted his bill to promote natural gas vehicle fuels, while Bridenstine supports an alternative proposal.

“Let’s get cars, trucks and buses running on natural gas,” Sullivan said. “We have an abundance of it here in the United States. It’s cheap and abundant and … it also addresses a national security issue by lessening our dependence on foreign oil.”

Bridenstine calls Sullivan’s NatGas Act a “big-government” boondoggle because it creates a short-term subsidy to convert vehicles to natural gas.

“We ought not let Washington, D.C., control free markets with tax subsidies,” he said.

Bridenstine said he supports the Domestic Jobs, Domestic Energy, and Deficit Reduction Act, which is backed by Oklahoma’s U.S. Sens. Jim Inhofe and Tom Coburn. That measure is intended to more directly stimulate oil and gas exploration in the United States.

Neither bill, as it turns out, is expected to win approval in Congress.

Now, this was only one “town-hall” type meeting, but perhaps voters in Oklahoma are tired of crony capitalism. It will certainly make the legislation harder to pass, as Sullivan was the primary sponsor, and was on the Energy & Commerce committee.


Post image for EPA’s Carbon Pollution Standard — One Step Closer to Policy Disaster

Today (June 25th) is the deadline for submitting comments on the EPA’s proposed Carbon Pollution Standard Rule, which will establish first-ever New Source Performance Standards (NSPS) for carbon dioxide (CO2) emissions from fossil-fuel electric generating units.

The proposed standard is 1,000 lbs of CO2 per megawatt hour (MWh). The EPA claims that 95% of all new natural gas combined cycle power plants can meet the standard — maybe, maybe not. One thing is clear — no conventional coal power plant can meet the standard. Even today’s most efficient coal power plants emit 1,800 lbs CO2/MWh on average.

A coal power plant equipped with carbon capture and storage (CCS) technology could meet the standard, but the EPA acknowledges that  CCS is prohibitive, raising the cost of generating electricity by as much as 80%.

So what the proposal is really telling the electric utility industry is this: If you want to build a new coal-fired power plant, you’ll have to build a natural gas combined cycle plant instead. Not surprising given President Obama’s longstanding ambition to “bankrupt” anyone who builds a new coal power plant.

In a comment letter submitted today on behalf of the Competitive Enterprise Institute, I recommend that the EPA withdraw the proposed regulation for the following reasons: [click to continue…]

Obama is the “Outsourcer-in-Chief,” I explain at this link.  He has moved thousands of American jobs to foreign countries, through subsidies and regulations.  A classic example of how Obama used taxpayer money to outsource American jobs is through the green-jobs subsidies in the $800 billion stimulus package, which went overwhelmingly to foreign firms, as American University’s Investigative Reporting Workshop and others have noted.

Post image for Air Quality in America – You Can Find It Here!

In 2007, the American Enterprise Institute (AEI) published Joel Schwartz and Steven Hayward’s Air Quality in America: A Dose of Reality on Air Pollution Levels, Trends, and Health Risks. This book is a powerful antidote to air pollution alarmism.

Although five years old, Air Quality in America is as relevant as ever. As public susceptibility to global warming alarmism has waned, EPA and its allies in the war on affordable energy rely increasingly on old-fashioned air pollution alarmism to sell their agenda.

You can still buy Air Quality in America from Amazon.Com. However, AEI no longer maintains a PDF version on its Web site. Because I make frequent use of the book, and want readers to be able to check my sources, I am posting a PDF copy on GlobalWarming.Org.

Post image for Why Sen. Lamar Alexander Is Wrong about the Utility MACT

The Senate this week has an opportunity to check one of EPA’s worst regulations: the Mercury and Air Toxics Standards Rule, also known as the Utility MACT. On Wednesday, the upper chamber of Congress will vote on S. J. Res. 37, a Congressional Review Act resolution of disapproval that would effectively block the Utility MACT.

To read more about the merits of S. J. Res. 37, click here and here. Suffice it to say for this post, EPA’s Utility MACT would cost $10 billion annually, making it one of the most expensive regulations ever. It would also ban the construction of new coal-fired power plants. As against these compliance costs, the Utility MACT’s purpose is to protect a supposed population of subsistence fisherwomen, who consume 225 of pounds of self-caught fish, from exclusively the 90th percentile most polluted bodies of water, during their pregnancies. I sincerely doubt that these women exist. My doubts are exacerbated by EPA’s failure to identify a single member of this putative population. Instead, they are modeled to exist.

For Members of the Senate—but especially among Members of the Minority Party—a “yes” on S. J. Res. 37 should be a no-brainer. After all, the Utility MACT is all pain and no gain. Inexplicably, however, Sen. Lamar Alexander (R-Tenn.) has steadfastly opposed the bill. I say “inexplicably” because Sen. Alexander’s rationale for opposing S. J. Res. 37 makes no sense.

According to Sen. Alexander, the Utility MACT would help Tennessee by reducing upwind air pollution that crosses into the Volunteer State, thereby making more difficult compliance with federal air quality regulations. In a speech last week, Alexander explained his thinking:

“I believe the EPA is right…and the reason is that it will stop dirty air from blowing into Tennessee because they are gong to require utilities from other states to put on the same pollution control equipment that TVA is putting on and we are going to pay for. So if we are going to do it, then they should do it because they are the source of a lot of our air pollution.”

Simply put, this is nonsensical. For starters, Tennessee’s air shed is already protected from upwind pollution by the “Good Neighbor” provision of the Clean Air Act. As its name would suggest, this provision requires that upwind States mitigate any pollution that adversely affects air quality in downwind States. Pursuant to the Good Neighbor provision, EPA last summer promulgated the Cross-State Air Pollution Rule, the purpose of which is to “stop dirty air from blowing into Tennessee” (to borrow Sen. Alexander’s terminology). Given that both the statute and code of federal regulations already protect Tennessee from upwind pollution, Sen. Alexander’s justification for supporting the Utility MACT is basically a call for duplicative regulation.

Sen. Alexander’s anti-S. J. Res. 37 reasoning is rendered even sillier by the fact that Tennessee is not currently victimized by out of state air pollution. If you follow this link to EPA’s website on the Cross-State Air Pollution Rule, there’s an interactive map that demonstrates all the “linkages” between upwind pollution and downwind areas whose ambient air quality is in violation of Clean Air Act standards. If you slide your mouse over Tennessee, it becomes evident that there are no upwind-downwind linkages adversely affecting Tennessee. Rather, the arrows are all pointing outside of the State, meaning that it is Tennessee about which neighboring States should worry.

In light of the fact that Sen. Alexander’s avowed justification for opposing S. J. Res. 37 is wrong, I remain perplexed as to why he seems to be doing everything in his power to protect the Utility MACT.

Post image for CEI’s Myron Ebell Discusses the Utility MACT Vote

CEI’s Myron Ebell appeared on E&E-TV this morning to discuss the upcoming vote on Senator Inhofe’s (R-OK) CRA vote to end the EPA’s mercury and air toxic’s rule. You can watch the video here. Here is a snippet of the conversation:

Monica Trauzzi: Myron, the Senate is expected to take up a measure this month that would change the future of EPA’s mercury and air toxics rule. There are two proposals that are actually being discussed on the Hill right now and the first is by Senator Inhofe and that would scrap the rule entirely. The second is by Senators Alexander and Pryor, and that would give utilities a little extra time to comply with the rule. What’s your take on the proposals and the overall impact on industry?

Myron Ebell: Well, first, the House has already passed legislation with a quite significant majority to block the utility MACT rule. Senator Inhofe’s resolution is brought under the Congressional Review Act and, therefore, it only requires a majority of those voting and it cannot be blocked by the Majority Leader or require a 60 vote, procedural vote. So, his is actually doable in the Senate. The Alexander Pryor legislation, I think Senator Alexander, who we might think of as the next Dick Lugar, is trying to provide cover for Democrats in tough election races to say that they’re voting for something that has absolutely no chance of passage, because their bill would take 60 votes, whereas Senator Inhofe’s much better resolution, which would block the rule entirely, only takes 50. The Alexander-Pryor legislation would only delay the implementation by a couple of years. So, instead of giving utilities four years, they would have six years in order to shut down their coal-fired power plants essentially.

Monica Trauzzi: But isn’t that a good thing? I mean couldn’t that help industry if they had a little extra time to comply and apply some of these technologies?

Myron Ebell: Sure, it could, but the fact is that there is no technology that will help these coal-fired power plants comply. So, we’re just essentially extending the killing off of coal-fired power plants. This bill has no chance of passage. That’s the key thing. It’s only being introduced to try to peel votes off of the Inhofe resolution.

Monica Trauzzi: So, you’re talking about the Alexander-Pryor bill?

Myron Ebell: Yes, it has, it would require 60 votes and there aren’t, if there aren’t 50 votes for the Inhofe resolution, there certainly aren’t going to be 60 for the Alexander bill.

Watch the rest here, or read the entire transcript here.

Post image for Inhofe Sets a Date for Senate Vote to Block All Pain and No Gain Utility MACT

Senator James M. Inhofe (R-Okla.) announced this week that he will bring his resolution to block the Utility MACT Rule to the Senate floor for a vote on Wednesday, 20th June. Senate Joint Resolution 37 is a privileged motion under the Congressional Review Act, which means that it requires only a majority of those voting to pass.

The Environmental Protection Agency’s Utility MACT (for Maximum Achievable Control Technology) Rule requires steep reductions in mercury emissions from coal-fired power plants. A new study by my CEI colleagues Marlo Lewis, William Yeatman, and David Bier shows that the rule will have miniscule health benefits and enormous costs. Electric utilities will be forced to close many coal-fired plants, which will raise electric rates for consumers and manufacturers and threaten electric reliability in major areas of the country. Op-eds by Lewis and Bier summarize key findings of their study.

Senators Lamar Alexander (R-Tenn.) and Mark Pryor (D-Ark.) have announced that they plan to introduce a bill to extend the time utilities have to comply with the rule from four years to six years. Their bill has no chance of passing because sixty votes would be required. It is meant to provide cover for several Democrats engaged in tight re-election races. They can vote against the resolution of disapproval (which could pass with fifty votes), but then explain to voters that they support another measure to make the rule less onerous.

Alexander and Pryor’s mischief means that Inhofe’s resolution is likely to be defeated. Note that Alexander, a Republican, is helping Democrats get re-elected.

Post image for Senate Deliberates on Vote to Check EPA’s All Pain and No Gain Utility MACT

Here at the Competitive Enterprise Institute, we have been busy trying to inform Members of the Senate about S. J. Res. 37, legislation that would block EPA’s outrageous new Mercury and Air Toxics Standards Rule, also known as the Utility MACT.

EPA’s Utility MACT, simply put, is an affront to common sense. Industry and EPA agree that it would cost electricity ratepayers almost $10 billion per year, making it one of the most expensive regulations ever. Worse, it would effectively ban the construction of new coal-fired power plants, by establishing mercury emissions limits that are a third of detectable levels. Because pollution control equipment vendors cannot even measure the emissions limit required by the Utility MACT, they cannot offer a guarantee that new coal-fired power plants will be in compliance with the regulation. And without such a guarantee, utilities are unable to raise capital to build new coal-fired electricity generating units.

And for what? The regulatory purpose of the Utility MACT is to protect a supposed population of subsistence fisherwomen, who eat 225 pounds of self- or family-caught fish, from exclusively the 90th percentile most polluted fresh, inland water bodies, during their pregnancies. Notably, EPA has never identified a single member of this putative population; rather, they are modeled to exist.

To be sure, politics, not science, is the impetus for the Utility MACT. Environmental special interests form one of President Obama’s core constituencies. They have made no secret of their desire to close every single coal-fired power plant in America. The Sierra Club, for example, runs a “Beyond Coal” campaign that boasts of shutting down almost 43,000 megawatts of coal-fired electricity generation. While campaigning for the Oval Office, then-Senator Barack Obama openly identified with the anti-coal sentiment of his green base. In 2008, he infamously told the San Francisco Chronicle editorial board that he would, as President, “bankrupt” the coal-industry. Now, his EPA is fulfilling this promise.

In order to rein in EPA’s anti-coal agenda, Senator James Inhofe introduced S. J. Res. 37, legislation that would block the Utility MACT. The vote is expected by next Wednesday at the latest, and it could happen as soon as this week.

Yesterday, CEI published a study intended to inform the Senate debate on S. J. Res. 37, titled “All Pain and No Gain: The Illusory Benefits of the EPA’s Utility MACT.” It was authored by my CEI colleagues Marlo Lewis and Dave Bier, and also me.

Last evening, Forbes published an oped about the new study by Marlo Lewis. In the following excerpt, he explains the absurd cost-benefit ratios of the Utility MACT:

The EPA estimates that implementing the Utility MACT Rule will cost $9.6 billion in 2016. The agency also estimates that the required mercury reductions will provide $0.5 to $6 million in health benefits in the same year…For the HAP reductions that are the Rule’s statutory purpose, estimated costs exceed estimated benefits by 1,600 to one or even 19,200 to one.

In this morning’s Washington Examiner David Bier has a piece exposing EPA’s fraudulent economic analysis of the Utility MACT. The following passage aptly summarizes his point:

EPA’s conclusion that the Utility MACT will create coal jobs is based on a single paper by Resources for the Future’s Richard Morgenstern, which studied four industries in the 1980s — pulp and paper, plastics, steel and petroleum — and concluded that for every million dollars they spent on environmental compliance, 1.55 jobs were created in those industries.

Agency officials simply took this finding and plugged in the Utility MACT’s regulatory costs. If this sounds simplistic, they actually show their work in a footnote of their RIA — 1.55 jobs times $10.9 billion adjusted for inflation.

Using this formula, EPA can impose infinite costs on any industry and always claim that it will create jobs. Even if a rule costs trillions of dollars, EPA could still claim job growth!

How does EPA get away with this? With a little help from friendly environmental special interests, that’s how. Here’s how it works: Whenever lawmakers deliberate on a measure that would rein in EPA (be it a vote on EPA’s climate power grab; or its Clean Water Act power grab; or its Regional Haze power grab, or any of its power grabs), well-funded green groups like the Sierra Club, NRDC, or the League of Conservation Voters, immediately take to the airwaves to equate a vote against EPA with child abuse. This is a topic I’ve discussed before on this blog—see here, here, and here. Of course, these ads are nothing but lies. However, they are effective lies. No politician worth his or her salt wants to be accused of harming children. Thus, these green special interests have distorted the debate on environmental policy, such that common sense rarely prevails. As a result, EPA is free to implement the President’s political goals.